Unisa Roy vs On The Death Of Haji Md. Jahurul ...
2022 Latest Caselaw 4921 Gua

                                                                    Page No.# 1/7

GAHC010194472018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP/180/2018

         UNISA ROY
         W/O- SRI TAPAS ROY, R/O- 2ND LINK ROAD, SILCHAR, P.O- SILCHAR-
         788001, DIST- CACHAR, ASSAM



         VERSUS

         ON THE DEATH OF HAJI MD. JAHURUL HOQUE MAJUMDER
         S/O- LATE HAJI AHMED ALI MAJUMDER, R/O- KANAKPUR, PART-I, P.O-
         KANAKPUR- 788006, DIST CACHAR, ASSAM

         1.1:TAMANNA BEGUM MAZUMDAR
         W/O- LATE HAJI MD. JAHURUL HOQUE MAJUMDER.

         1.2:MANJUR AHMED MAZUMDAR
          S/O- LATE HAJI MD. JAHURUL HOQUE MAJUMDER.

         1.3:RAJA AHMED MAZUMDAR
          S/O- LATE HAJI MD. JAHURUL HOQUE MAJUMDER.

         1.4:SHAMMI BARLASKAR
          D/O- LATE HAJI MD. JAHURUL HOQUE MAJUMDER.

         1.5:RUBINA BEGUM LASKAR
          D/O- LATE HAJI MD. JAHURUL HOQUE MAJUMDER.
         ALL ARE R/O- KANAKPUR
          PART- I
          P.O.- KANAKPUR- 788006
          DIST.- CACHAR
         ASSAM
                                                                     Page No.# 2/7



                              :: PRESENT ::
                HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

             For the Petitioner       :       Mr. N. Dhar,
                                              Advocate.
             For the Respondents :            Mr. S.P. Choudhury,

Advocate.

            Date of Hearing               :   08.08.2022.
           Date of Judgment       :           13.12.2022


                       JUDGMENT AND ORDER (CAV)

Heard Mr. N. Dhar, learned counsel appearing for the petitioner. Also heard Mr. S.P. Choudhury, the learned counsel representing the respondents.

2. This is an application under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India whereby the judgment and order dated 26.04.2018 passed by the learned Civil Judge No.1, Cachar, Silchar in Title Appeal No.10/2016, affirming the judgment and decree dated 27.01.2016 passed by the learned Munsiff No.1, Cachar, Silchar in Title Suit No.34/2011 is put to challenge.

3. The petitioner herein (the defendant before the trial court) had a tenancy agreement dated 02.09.2004 in respect of a room with the present respondents (the plaintiffs before the trial court) for a period of three years. The monthly rent was agreed at Rs.2,400/-. It may be stated that she paid an advance amount of Rs.20,000/-, which was to be adjusted with the monthly rent @ Rs.555.55. Accordingly, the tenancy Page No.# 3/7

agreement expired on 03.09.2007.

4. But the petitioner continued to occupy the suit room. Therefore, the respondents filed the suit before the trial court praying for eviction of the present petitioner as well as for recovery of a compensation of Rs.86,400/-.

5. The present petitioner contested the suit by filing a written statement. She admitted the averments of the plaint.

6. The petitioner claims that after expiry of the tenancy agreement on 03.09.2007, she had handed over the possession of the suit room to the respondents and shifted her business to another place.

7. The petitioner further claims that in the early part of October, 2009, the present respondents offered to sale 2 Kathas 6 Chattak of land upon which the said suit room stood at a price of Rs.26,50,000/-. Pursuant to that, on 29.10.2009, the respondents executed an agreement for sale in favour of M/S. Pidawmai, of which the present petitioner is the proprietor. According to the petitioner, an advance of Rs.11,80,000/- was paid by her on the same day. Clause 1 of the agreement for sale mentions that fact. The petitioner claims that after taking the aforesaid amount of Rs.11,80,000/-, the present respondents further took different sums of money, as advance. In this way, the present petitioner paid a total sum of Rs.21,80,000/-.

8. The petitioner started to put pressure upon the respondents to execute the sale deed. But no steps were taken by the respondents to execute the sale deed.

Page No.# 4/7

9. In the last part of January, 2011, the respondents handed over possession of the suit property to the present petitioner. The petitioner claims that she is ready to perform her part of the contract, but the respondents failed to perform their part of the contract. Inspite of the said facts the petitioner did not file any counterclaim.

10. The trial court framed the following issues:

(1) Is there any cause of action for the suit?

(2) Whether the suit is barred by limitation?

(3) Whether the suit is maintainable in its present form and manner?

(4) Whether there is any relationship of landlord and the tenant between the plaintiff and the defendant?

(5) Whether the defendant is liable to be evicted from the suit premise?

(6) Whether the plaintiff is entailed to decree as prayed for?

(7) To what relief/reliefs the plaintiff is entitled to?

11. The petitioner and the respondents examined one witness each.

12. The trial court held that there is no relationship of landlord and tenant between the petitioner and the respondents and directed eviction of the respondents from the suit property.

13. Upon the Issue No.5, the present petitioner produced the agreement for sale as Ext.A. It was a type written document. The trial court found that in Clause 1 of the said exhibit, it was typed that Rs.1,80,000/- was Page No.# 5/7

paid, as advance, but subsequently, it was corroded by hand and the advance amount was converted to Rs.11,80,000/-. The trial court also noticed that a receipt showing that the present respondents received Rs.10,000/- was converted into a receipt of Rs.1000,00/-. Therefore, the trial court did not believe those documents and held that the present petitioner was liable to be evicted from the suit premises.

14. The suit was ultimately decreed in favour of the respondents. The present petitioner filed an appeal. The first appellate court agreed with the trial court and affirmed the judgment passed by the court below.

15. The Assam Urban Areas Rent Control Act, 1972, prohibits filing of a second appeal. Therefore, the present petition under Section 115 of the Code of Civil Procedure has been filed. The present petition has been filed stating that the trial court as well as the appellate court erroneously passed the decree for eviction of the petitioner after holding that there was not tenant and landlord relationship after expiry of the tenancy agreement between the petitioner and the respondent.

16. The second ground is that both the courts below ignored the agreement for sale dated 29.10.2009 vis-à-vis the law under Section 53A of the Transfer of Property Act, 1882 resulting in miscarriage of justice.

17. I have given my anxious considerations to the submissions made by the learned counsel of both sides.

18. In a civil suit, the plaintiff has to plead and claim something against the defendant and the defendant has to specifically deny those claims. If the pleadings of the plaintiff are admitted by the defendant, then the court is obliged to pass a judgement in favour of the plaintiff. Law Page No.# 6/7

requires that the pleadings of the plaintiff are to

be denied specifically by the defendant. Evasive denials by the defendant are not permitted by law. When the pleadings are denied, the plaintiff has to prove his pleadings by adducing his evidence. Unless the defendant files a counter-claim, if he makes some claim in the written statement, those claims shall not be looked into by the trial court.

19. In the case in hand, the present petitioner (defendant before the trial court) pleaded new facts in the written statement but did not file any counter-claim. Therefore, the claims of the present petitioner in the written statement do not deserve to be subjected to judicial scrutiny.

20. In the instant case, the petitioner claimed that she had an agreement for sale with the respondents and on the basis of the said agreement, she was handed over possession of the suit property. But there is no evidence to show that by virtue of the agreement she was handed over possession of the suit property. But the facts clearly show that at the time of filing of the suit by the respondents the petitioner was in possession of the suit property. The petitioner failed to prove that she had actually handed over possession of the suit property after expiry of the tenancy agreement on 03.09.2007.

21. Although the earlier tenancy agreement expired on 03.09.2007, the continued possession of the suit property by the present petitioner has made her a tenant at sufferance. Therefore, the petitioner is liable to be evicted from the suit property.

22. This Court is of the opinion that the learned trial court as well as the first appellate court have rightly appreciated the facts and the law and Page No.# 7/7

arrived at a correct finding.

23. The present revision is found to be devoid of merit and stands dismissed accordingly.

JUDGE

Comparing Assistant